18 February 2013. Today the Dublin Regulation, that identifies which European State is responsible for deciding on an asylum application, turns 10. On this occasion, Forum Réfugiés-Cosi, ECRE, the Hungarian Helsinki Committee and their national partners (LCRI in Bulgaria) are publishing a comparative study on how this Regulation is applied by States entitled The Dublin II Regulation: Lives on Hold that shows that the Dublin system continues to fail both refugees and Member States.

The report reveals the harsh consequences of the Dublin system for asylum seekers whereby families are separated, people are left destitute or detained and despite the objective of the Regulation, access to an asylum procedure is not always guaranteed.

One example of the suffering to families caused by the Dublin system is the case of a Chechen father separated from his new-born child by the Austrian authorities. While the baby had refugee status in Austria, his father was sent to Poland under the Dublin system. The father’s request to apply for family reunification once he was in Poland was refused by the Austrian authorities and so the father remained separated from his wife and child by the mechanical application of this system. The majority of people sent back to another country under Dublin are actually returned to the first State of irregular entry into the EU.

Asylum seekers in the Dublin procedure are frequently treated as a secondary category of persons granted fewer entitlements in terms of reception conditions. Whenever there are shortages in the capacity of housing available for asylum seekers, those in the Dublin procedure are often the first affected by this. Access to accommodation in some Member States is not always ensured with some asylum seekers having to resort to Courts to access housing or even forced to building makeshift settlements themselves in order to find some shelter.

Fewer than half of the agreed Dublin transfers are actually carried out, suggesting a vast amount of wasted bureaucracy. However, no comprehensive data on the financial cost of applying the Dublin Regulation has ever been published.

The soon to be adopted Dublin III Regulation contains some significant areas of improvement, such as the right to a personal interview, but maintains the underlying principles of the Dublin system and will not address all these deficiencies. The application of the Regulation will require close monitoring from the European Commission in order to ensure its correct implementation by all Member States.

Ultimately, the underlying principles of the Dublin Regulation need to be fundamentally revised to design a more humane and equitable system that considers the individual case of asylum seekers and their connections with particular Member States, and therefore favours refugees’ integration prospects in Europe.

Background

The research deals with the practice surrounding the Dublin II Regulation with respect to fundamental rights in 11 states: Austria, Bulgaria, France, Germany, Greece, Hungary, Italy, Slovakia, Spain, Switzerland and the Netherlands.

- On the human cost of the Dublin system read the personal accounts of:

– An Iraqi family of asylum seekers whose imminent removal from Bulgaria to Greece under the readmission agreement between these two countries was only prevented through national court challenges and the involvement of the European Court of Human Rights to temporarily stop the removal.

– Kazim, from Afghanistan. Kazim had traveled from Germany to Sweden, where the authorities requested that Germany take him back. Germany accepted to take over responsibility for examining his asylum claim, but his application was rejected by the German authorities as being manifestly unfounded as he missed his asylum interview and was deemed not to have offered a reasonable explanation for his absence. Actually, he was still in Sweden as the Swedish authorities only sent him back two weeks after the scheduled interview.

The International Detention Coalition (IDC), in collaboration with the Greek Council for Refugees (GCR), brought together over 20 organisations from 15 EU Member States for the first-­‐ever European Union workshop on immigration detention in Athens, Greece on the 22th and 23rd of November 2012. The aim was to develop a regional civil society strategy and action plan on detention, as well as share concerns and priorities on the issue.

Participants discussed the different detention practices in the EU, as well as the EU legal framework. Common concerns are the lack of a specific ban on children detention (see Global Campaign to End Immigration Detention of Children)
and the fact that only a few countries in the EU – Belgium, Denmark and Sweden- are currently starting to implement alternatives to detention.

The organisations participating in the workshop decided to constitute a working group to advocate for the end of immigration detention and for the use of alternatives to detention.

You are welcome to the movie projection, organized by the Legal Clinic for Refugees and Immigrants and the French Cultural Institute in Sofia! The event will take place on 20 June 2012, at 7 pm. Entrance is free!

The Legal Clinic for Refugees and Immigrant publishes the Information Note prepared by Dr.Valeria Ilareva on case-law in Bulgaria in 2011 that documented some typical unlawful administrative practices in hindering access to the asylum system. Download the Information Note

Themba Lewis, who is currently in Egypt and member of the editorial team of the Fahamu Refugee Legal Aid Newsletter invited Valeria Ilareva to comment on the recently published UNHCR report “No Place to Stay: A Review of the Implementation of UNHCR’s Urban Refugee Policy in Bulgaria“. Below we reproduce the article from the June 2011 issue of the Fahamu Refugee Legal Aid Newsletter:

In May 2011 the UNHCR Policy Development and Evaluation Service published ‘No Place to Stay: A Review of the Implementation of UNHCR’s Urban Refugee Policy in Bulgaria’, evaluating the implementation of UNHCR’s urban refugee policy in Sofia. The Bulgarian capital was selected along with Kuala Lumpur (Malaysia), Nairobi (Kenya) and San Jose (Costa Rica) for the evaluation. Bulgaria was chosen in order to assess the extent to which the policy is relevant to a European Union Member State (albeit one of the poorest) where there is a UNHCR Branch Office and Representation, but where the national government has major engagement with the issue of urban refugees. The review was done by an independent consultant and a member of UNHCR’s Policy Development and Evaluation Service.

The report outlines the situation facing urban refugees in Bulgaria. Of particular note are the chapters on ‘Access to shelter and services’ and ‘Livelihoods and self reliance’, as they highlight the camp-style conditions currently in place in urban Sofia. According to legal regulation in Bulgaria, every asylum seeker who chooses to live outside the camp-like premises of the State Agency for Refugees is deprived of the right to receive the monthly financial assistance of US$45. At the same time, access to the labour market is not allowed until one year has passed since the registration of the asylum application. Under these circumstances asylum seekers are knowingly exposed to the risk of exploitation and abuse in the informal economy.

The report mentions the planned inauguration of a 300-capacity transit centre for asylum seekers in Pastrogor, the main entry point for asylum seekers on the Turkish-Bulgarian border. This is currently scheduled to take place on 30th May, 2011. This news is met with concern by human rights practitioners in Bulgaria. Unlike the ‘reception centre’ in Sofia, the ‘transit centre’ is closed, disallowing freedom of movement. It is designed to house people undergoing the Dublin procedure on determining the responsible Member State and for fast-track processing of manifestly unfounded applications of ‘illegally staying foreigners’ (Article 47, Paragraph 2.1. of the Law on Asylum and Refugees). The ‘transit centre’ is where asylum seekers who have crossed the Turkish-Bulgarian border irregularly will be detained. Until the opening of the ‘transit centre’ in Pastrogor, the head of the State Agency for Refugees had designated the Busmantsi immigration detention centre in Sofia as a ‘transit centre’.

Over the last few years access to the asylum procedure in Bulgaria has been hindered by the discretional registration of asylum seekers who have crossed the border irregularly (Ilareva 2007). In a recent case of an Iraqi family who had undergone persecution and ill-treatment, the European Court of Human Rights intervened under Rule 39 in order to stop the family’s removal, which amounted to refoulement. The State Agency for Refugees had refused to register the asylum applications of the single mother and her two children and — after keeping them detained in the Busmantsi centre for nearly five months — the migration authorities attempted to deport the family as illegal immigrants. On 10th May, 2011, the family was boarded for deportation and was stopped just before leaving Bulgarian territory following the urgent action of the Legal Clinic for Refugees and Immigrants (LCRI), the Strasbourg court, and the UNHCR representation in Sofia. Rarely is it possible, however, to achieve such a successful outcome, which in this particular case was due to the fact that LCRI had worked on the case for several months and had sufficient evidence to prove that the family belonged to a vulnerable group and had insistently applied for asylum. In Pastrogor, access to legal aid will hardly be possible in view of the distance from the capital, where NGOs providing legal aid are based, without resources for the journey.

The lack of lawyers in the Pastrogor centre is coupled with another issue of concern. As the UNHCR report highlights, legal assistance in Bulgaria is usually sought only after an asylum seeker is served a decision rejecting protection, while access to the asylum and interviewing procedures receive less attention.

Against this background, the report’s recommendation that ‘UNHCR should undertake a risk assessment with respect to the notion of resettling refugees in Bulgaria’ (para.141) is well-founded at present.

Arevik, a 22-year-old Armenian national pregnant in her third month, is currently coercively “accommodated” in the Special Centre for Temporary Accommodation of Foreigners in Busmantsi, Sofia. Arevik has been detained in order to execute an order for her deportation. The order has been issued after the girl overstayed her tourist visa, on which she arrived in Bulgaria to be with her boyfriend David. David is formally a national of Armenia. However, for the duration of 18 years by now, since he was six-years old, David has been living with his family in Bulgaria. Despite his deep integration in the Bulgarian society, David has no identity documents and, accordingly, his status is one of an “illegal” immigrant. Arevik remained together with David in Bulgaria since without documents he cannot travel outside the country. They cannot get married for the same reason.

At the date of Arevik’s coercive “accommodation” in the Special Centre for Temporary Accommodation of Foreigners in Busmantsi on 9 March 2010, her deportation order was formally in accordance with the technical provisions of the Law on Foreigners in the Republic of Bulgaria. However, in detention Arevik found out that she was pregnant. On the basis of this new circumstance she applied for humanitarian protection in Bulgaria to preserve the integrity of her family with David (pursuant to Arevik’s deportation order, she is banned from entering Bulgaria for a period of five years). The State Agency for Refugees registered Arevik’s application for humanitarian protection on 30 March 2010. From this moment on, ex lege the actions for her deportation should be suspended. In spite of this, the authorities continue to keep Arevik in detention with a view to deport her. Arevik’s detention since 30 March 2010 is unlawful. The legal arguments substantiating the unlawfulness of her detention as presented by the lawyer Valeria Ilareva can be found here

Two broadcastings on the Bulgarian National Radio covered the case of Arevik and David [in Bulgarian language]: on 24 March 2010 and 15 April 2010.

You can read more on the case and on the civil society support for Arevik and David here [in Bulgarian language].

There is an increasing number of cases, in which Bulgaria is condemned by the European Court of Human Rights for abuse of power in expulsion of foreigners from the country. This tendency, which was pointed out by LCRI and its partners at a press conference on 01 February 2010, is confirmed by the most recent judgment in Strasbourg.

The Pakistani citizen Ali Raza and the Bulgarian citizen Zoya Raza are married in Bulgaria since the year 2000. On 6 December 2005 the National Security Service at the Ministry of the Interior issued an order for expulsion against Mr. Raza and a ten-years ban to enter Bulgaria on the ground that he constituted a serious threat to the national security. The order did not state the factual reasons for reaching that conclusion. Mr. Raza was not served a copy of the order and he came to know about it only after his detention for expulsion. From 30 December 2005 till 15 July 2008 Mr. Raza was ‘coercively accommodated’, firstly in the ‘Home for temporary accommodation of adults’ in the ‘Drujba’ neighbourhood in Sofia , and after the inauguration of the new center in the Busmanci neighbourhood, he was moved to the ‘Special home for temporary accommodation of foreigners’. Although the Sofia City Court issued a decision for Mr. Raza’s release in view of the protracted length of his detention, the Supreme Administrative Court repealed the decision of the Sofia court and ruled that the orders for ‘coercive accommodation’ were not subject to judicial control.

After the ‘coercive accommodation’ of Mr. Raza was substituted by an order for his daily appearance for signature at the local police station, in August 2008 he submitted an application before the State Agency for National Security to review his expulsion. However his application was rejected on the ground that the expulsion order was already in force. His removal from Bulgaria is only temporarily halted for technical reasons – lack of documents for his re-entry into Pakistan.

At the beginning of 2008 the family turned for legal aid to the Legal Clinic for Refugees and Immigrants (LCRI), which – after exhausting all domestic remedies – helped them to make an application before the Strasbourg court (Application №31465 of 28 June 2008).

In its Judgment of 11 February 2010 the European Court of Human Rights unanimouslyheld:

The Court reaches the conclusion that – as in the case of C.G. v. Bulgaria– Mr. Raza “did not enjoy the minimum degree of protection against arbitrariness on the part of the authorities” in issuing his expulsion order and the resulting interference with his family life was not in accordance with a “law” satisfying the requirements of the Convention (para.55 of the judgment);

2) There has been a violation of the right to an effective remedy, enshrined in Article 13 of the ECHR;

3) In relation to the ‘coercive accommodation’ of Mr. Raza:

– there has been a violation of the right to liberty under Article 5, Para. 1 of the ECHR

The Court reiterates that the immigration detention under Art.5, Para 1 „f” of the ECHR is lawful only if “action is being taken with a view to deportation”. In the case of Mr. Raza’s detention that continued for over two years and a half, the ‘coercive accommodation’ had ceased to serve its lawful purpose, because the Bulgarian authorities failed to conduct the expulsion proceedings with due diligence – their actions were limited to sending three letters to the Consular section of the Ministry of Foreign Affairs asking for assistance. Furthermore, the successful implementation of the more lenient measure of periodic appearance at the local police station after Mr. Raza’s release “shows that the authorities had at their disposal measures other than the applicant’s protracted detention to secure the enforcement of the order for his expulsion.” (paras.72-75 of the judgment)

– there has been a violation of the right to speedy judicial review of the detention according to Article 5, Para.4 of the ECHR.

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Congratulations to the attorney Diana Daskalova and the students from LCRI on their successful work on the case and Thank You to all human rights defenders who – also with their actions prior to this judgment – enhance the establishment of the rule of law in Bulgaria!